Pre-Nuptial Agreements

Let’s face it – there is nothing romantic about prenuptial agreements. In fact, I doubt that there is anything that would kill romance faster than these two words being uttered by your significant other when talking about marriage, weddings and honeymoons!

Whilst any engaged couple would anticipate a life long happy commitment, we are all practical enough in this day and age to know that marriages do increasingly end in divorce.

A pre-nuptial agreement is considered by many to be a mature way of saying to one another how family assets should be fairly divided if the marriage were to end. Such an agreement can be entered into in the hope that the same agreement will gather dust over the years and need never be referred to in the future.

Is a pre-nuptial agreement legally binding?

In short, the answer is no, pre-nuptial agreements are not strictly legally binding –indeed, in the past they were considered contrary to public policy as it was thought to undermine the sanctity of marriage.

In 2010, a Supreme Court Judgment in the case of Radmacher and Granatino looked in detail at the issue of pre-nuptial agreements (as well as post-nuptial agreements). This case has led to a significant move towards the enforceability of these agreements.

The Supreme Court decided that while pre-nuptial and post-nuptial agreements are not binding in themselves, there will now be a “presumption” in favour of such agreements. In effect, this means that a Court will now uphold a pre-nuptial agreement in all cases except those where either spouse can show that it would be unfair to do so.

Should I sign a pre-nuptial agreement before I get married?

It is advisable for people, particularly those who bring to the marriage inheritances or family businesses or are entering a second marriage, to enter into pre-nuptial agreements prior to and in anticipation of marriage. The agreement will record how the couple intend to divide their assets if the marriage breaks down at a later date.

As long as the terms of the pre-nuptial agreement are entered into fairly and address both parties needs then it is likely that it will hold good.

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